People need to ensure that they have a well-drafted and valid will to ensure that their wishes are respected. Picture: File
While drafting a will is essential part of planning for the future, many people are not sure about the rules and requirements, according to Advocate Anneke Le Roux, Fiduciary Specialist, Professional Provident Society (PPS).
Having a will that is well-drafted and valid is critical in ensuring that a person’s wishes are respected and that their loved ones are taken care of.
Le Roux answers some of the most common questions around wills to help people make informed decisions.
According to Le Roux, anyone that is 16 or older can draft a will, along as they are mentally capable of understanding the nature and consequences of their actions at the time.
If someone claims that the person was mentally incapable when they were drafting the will, they will need to prove it.
“A witness to a will must be at least 14 years old and competent to give evidence in a court of law. Being a witness does not require knowing the contents of the will but witnesses must be present at the signing,” Le Roux said.
Le Roux said that the will must be in writing. Wills that are oral or recorded on video are not legally valid in South Africa.
If a person dies without a valid will, then their estate will be distributed, according to the Law of Intestate Succession. This means that the state will decide who inherits the person assets which may not be in line with their wishes.
Le Roux said that in terms of estate duties (applicable on late estates since March 1, 2018), there is a rate of 20% on the first R30 million of the dutiable estate and 25% on any amount that is more than R30 million.
“Executors may charge up to 3.5% excluding VAT of the total estate value to administer it and 6% excluding VAT on any income accrued or collected after the death of the deceased,” Le Roux said.
Le Roux said that both legitimate and illegitimate children inherit equally from their blood relations under the Intestate Succession Act.
If there is no provision for a trust in the will, a minor child’s inheritance is paid into the Guardian’s Fund which managed by the Master of the High Court. This could limit access to the funds until the child reaches legal adulthood.
“An Inter Vivos Trust is established while a person is still alive, while a Testamentary or will Trust is created upon a person’s death,” Le Roux said.
“Each type serves a different purpose in estate planning and should be chosen based on individual needs and circumstances.”
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